Monday, October 10, 2005

In Re Complaint of Judicial Misconduct (9th Cir. - Sept. 29, 2005)

This is why I love Judge Kozinski. Just love him. And why you should too. In a platonic, non-sexual way, of course.

When Judge Kozinski goes off on something, he's often right. But even when he's wrong, he almost always writes a great opinion, and one that gets you thinking. And that's definitely the case here. A complaint is filed against a district court judge, and the majority basically decides not to do anything about it. To which Judge Kozinski writes a dissent, which absolutely kicks the crap (pardon my French) out of the panel.

That's not, again, to say that Judge Kozinski is necessarily right on the merits. This case probably involves an issue on which reasonable minds might disagree. Especially since the dispute isn't really law-based, but rather merely concerns what the appropriate penalty (if any) should be for a particular judge who conducted himself in a manner that was (in my mind) clearly wrong. You've got several very nice judges on this panel; indeed, perhaps, in this case, overly nice. So when the majority basically lets the judge off by saying that he's probably "learned his lesson," you can see where they're coming from. So it's not that Judge Kozinski is totally and indisputably right about the merits.

Nonetheless, his opinion crushes the panel's. It's not even close. You've got to read the whole thing to see precisely what I mean. And it's also somewhat weird, because the majority opinion doesn't even seem to take on most of Judge Kozinski's arguments, and instead almost seems to let themselves be crushed. The majority almost seems to say: "Yes, Alex, I know that you're right, and if we were harsher people, yeah, we'd slam this guy pretty hard, but we're just going to be overly nice here, because we just don't have it in us to punish this 80-year old jurist, who's likely to be gone in a very short time anyway. Can we just please let it be?"

Of course, the majority doesn't actually say that, and Judge Kozinski has a pretty persuasive response even if they did. But that's the underlying dispute here, I think.

So anyway, this is exactly why we need people like Alex on the bench. Who are both able and willing to go off on particular issues -- things about which they feel strongly -- even thought (indeed, maybe because) they're going against the tide. My only complaint, quite frankly, about Judge Kozinski's dissent is that even he's a bit too nice, and -- like the majority -- relentlessly refrains from naming the judge at issue. Who's Judge Manuel Real, by the way. Sure, you can find out who it is fairly easily. But still, given what transpired here, there's at least got to be some sort of shame that attaches to his conduct, and for the entire panel to deliberately leave out his Judge Real's name seems utterly lame to me. Judge Real did what he did. If there was nothing wrong about it, then he shouldn't be ashamed to have his name attached to it. And if, by contrast, there was indeed something wrong with it, then the least the panel should do is let the public know. To have the panel instead dance around Judge Real's identity just seems incredibly lame.

For those readers who practice (as I once did), learning that it's Judge Real who performed the acts at issue here will hardly come as a shock. The guy -- with all due respect -- is both a bully and somewhat of a nutjob. And I've got utterly no axe to grind here; I've never had a case before him, nor has he ever done anything to either me or anyone of my acquaintance. But his reputation is well-known and, in my mind, well-deserved. So it came not as all as a shock to me to learn that he, inter alia, was both the type of tyrant and the type of whacko who would perform the activities at issue here.

Anyway, read this thing. Alex: You da man. Don't ever change.